| Booth v. Maryland
(No. 86-5020)
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| Syllabus
| Opinion
[ Powell ] | Dissent
[ White ] | Dissent
[ Scalia ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
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Booth v. Maryland
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND
JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting.
[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.
Gregg v. Georgia, 428 U.S. 153, 184 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.). The affront to humanity of a brutal murder such as petitioner committed is not limited to its impact on the victim or victims; a victim's community is also injured, and in particular the victim's family suffers shock and grief of a kind difficult even to imagine for those who have not shared a similar loss. Maryland's legislature has decided that the jury should have the testimony of the victim's family in order to assist it in weighing the degree of harm that the defendant has caused and the corresponding degree of punishment that should be inflicted. This judgment is entitled to particular deference; determinations of appropriate sentencing considerations are "‘peculiarly questions of legislative policy,'" id. at 176 (quoting Gore v. United States, 357 U.S. 386, 393 (1958)), and the Court should recognize that, "‘[i]n a democratic society, legislatures, not courts, are constituted to respond to the will, and consequently the moral values, of the people,'" 428 U.S. at 175 (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, C.J., dissenting)). I cannot agree that there was anything "cruel or unusual" or otherwise [p516] unconstitutional about the legislature's decision to use victim impact statements in capital sentencing hearings.
The Court's judgment is based on the premises that the harm that a murderer causes a victim's family does not in general reflect on his blameworthiness, and that only evidence going to blameworthiness is relevant to the capital sentencing decision. Many if not most jurors, however, will look less favorably on a capital defendant when they appreciate the full extent of the the harm he caused, including the harm to the victim's family. There is nothing aberrant in a juror's inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused; many if not most persons would also agree, for example, that someone who drove his car recklessly through a stoplight and unintentionally killed a pedestrian merits significantly more punishment than someone who drove his car recklessly through the same stoplight at a time when no pedestrian was there to be hit. I am confident that the Court would not overturn a sentence for reckless homicide by automobile merely because the punishment exceeded the maximum sentence for reckless driving; and I would hope that the Court would not overturn the sentence in such a case if a judge mentioned, as relevant to his sentencing decision, the fact that the victim was a mother or father. But if punishment can be enhanced in noncapital cases on the basis of the harm caused, irrespective of the offender's specific intention to cause such harm, [n1] I fail to see [p517] why the same approach is unconstitutional in death cases. If anything, I would think that victim impact statements are particularly appropriate evidence in capital sentencing hearings: the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, see, e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982), by reminding the sentencer that, just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society, and in particular to his family.
The Court is
troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy,
and declares that "our system of justice does not tolerate such distinctions." Ante at 506, n. 8. It is no doubt true that the State may not encourage the sentencer to rely on a factor such as the victim's race in determining whether the death penalty is appropriate. Cf. McCleskey v. Kemp, 481 U.S. 279 (1987). But I fail to see why the State cannot, if it chooses, include as a sentencing consideration the particularized harm that an individual's murder causes to the rest of society, [n2] and in particular to his family. To the extent that the Court is concerned that sentencing juries might be moved by victim impact statements to rely on impermissible factors such as the race of the victim, there is no showing that the statements in this case encouraged this, nor should we lightly presume such misconduct on the jury's part. Cf. McCleskey v. Kemp, supra.
The Court's reliance on the alleged arbitrariness that can result from the differing ability of victims' families to articulate [p518] their sense of loss is a makeweight consideration: no two prosecutors have exactly the same ability to present their arguments to the jury; no two witnesses have exactly the same ability to communicate the facts; but there is no requirement in capital cases that the evidence and argument be reduced to the lowest common denominator.
The supposed problems arising from a defendant's rebuttal of victim impact statements are speculative, and unconnected to the facts of this case. No doubt a capital defendant must be allowed to introduce relevant evidence in rebuttal to a victim impact statement, but Maryland has in no wise limited the right of defendants in this regard. Petitioner introduced no such rebuttal evidence, probably because he considered, wisely, that it was not in his best interest to do so. [n3] At bottom, the Court's view seems to be that it is somehow unfair to confront a defendant with an account of the loss his deliberate act has caused the victim's family and society. I do not share that view, but even if I did, I would be unwilling to impose it on States that see matters differently.
The Court's concern that the grief and anger of a victim's family will "inflame the jury," ante at 508, is based in large part on its view that the loss which such survivors suffer is irrelevant to the issue of punishment -- a view with which I have already expressed my disagreement. To the extent that the Court determines that, in this case, it was inappropriate to allow the victims' family to express their opinions on, for example, whether petitioner could be rehabilitated, that is obviously not an inherent fault in all victim impact statements, and no reason to declare the practice of admitting [p519] such statements at capital sentencing hearings per se unconstitutional. I respectfully dissent.
1. Congress considers the effect of crime on its victims a relevant sentencing consideration. Thus, presentence reports prepared pursuant to Federal Rule of Criminal Procedure 32(c)(2) must include
information concerning any harm, including financial, social, psychological, and physical harm, done to or loss suffered by any victim of the offense. . . .
This Court's cases also indicate that the harm caused by an offense may be the basis for punishment even if the offender lacked the specific intent to commit that harm. See, e.g., United States v. Feola, 420 U.S. 671 (1975) (conviction under 18 U.S.C. § 111 for assaulting a federal officer does not require proof that the defendant knew the victim's status).
2. I doubt that the Court means to suggest that there is any constitutional impediment, for example, to authorizing the death sentence for the assassination of the President or Vice President, see 18 U.S.C. §§ 1751 1111, a Congressman, Cabinet official, Supreme Court Justice, or the head of an executive department, 18 U.S.C. § 351 or the murder of a policeman on active duty, see Md.Ann.Code, Art. 27, § 413(d)(1) (1982).
3. The possibility that the jury would be distracted by rebuttal evidence is purely hypothetical, since petitioner introduced no such evidence. It is also unclear how distracting (as opposed to offending) the jury would disadvantage the defendant, and why, if there were some disadvantage to the defendant in pressing too hard a rebuttal to a victim impact statement, he should be heard to complain of the consequences of his tactical decisions.
